FN5.
On March 11, 2005, this case was reassigned by the
Chief Justice of the United States to the Honorable Suzanne
B. Conlon, District Judge for the Northern District of Illinois.
See
Dkt. No. 20.

*1Pro
se
plaintiff Roy Maynor sues the United States of America and
the State of North Carolina to enforce Indian rights. Defendants
move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6). Further, North Carolina moves for a more definite statement.

BACKGROUND

For
purposes of the motion, the court accepts all well-pleaded allegations
in the complaint as true and draws all reasonable inferences
in Maynor's favor. Price
v. Greenspan,
No. 04-973, 2005 U.S. Dist. LEXIS 12316, *2 (D.D.C. June
22, 2005), citing
Kowal
v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C.Cir.1994). A motion to dismiss for
failure to state a claim or for lack of subject
matter jurisdiction should not be granted ?unless
it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would
entitle him to relief.?
Id.,
citing Conley
v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957) ; Flynn
v. Veazey Constr. Corp.,
310 F.Supp.2d 186, 189-90 (D.D.C.2004). Pro
se
filings are construed liberally. See
Richardson
v. United States,
193 F.3d 545, 548 (D.C.Cir.1999).

The
following allegations are taken from the complaint. In 1938, Maynor's
father was among 22 individuals recognized by the United States
Department of Interior, Office of Indian Affairs, as an ?Indian
of one-half or more degree.?
Compl. at p. 1 and Ex. 1. In disregard of
the rights accorded to the Tuscarora people by this recognition,
the United States and North Carolina governments: (1) forced the
?Lumbee?
name on all natives regardless of their tribal affiliation in
an effort to hide the Tuscarora lineage; (2) obtained and
sold land that belonged to the Tuscarora people through fraudulent
land leases and unratified treaties; and (3) engaged in cultural
genocide and propaganda against the Tuscaroras. Id.
at pp. 1-6. Maynor seeks: (1) the return of Tuscarora
ancestral remains and artifacts held by North Carolina; (2) temporary
and permanent injunctive relief prohibiting North Carolina from conducting archcological
digs on Tuscarora sites; (3) the return of land set
aside for the Tuscarora people or, alternatively, other suitable land;
(4) declaratory relief acknowledging the right to live as Tuscarora
people; (5) $500 million to rebuild the Tuscarora infrastructure; and
(6) other appropriate relief. Id.
at pp. 6-7.

DISCUSSION

I.
Standing

?It
is well established ...
that before a federal court can consider the merits of
a legal claim, the person seeking to invoke the jurisdiction
of the court must establish the requisite standing to sue.?
Whitmore
v. Arkansas,
495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135
(1990). Maynor bears the burden of establishing standing. See
FW/PBS,
Inc. v. Dallas,
493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603
(1990) ; Idaho
v. Interstate Commerce Comm'n,
35 F.3d 585, 590 (D.C.Cir.1994). Maynor must clearly and specifically
show injury in fact that is fairly traceable to the
defendants' action and redressable by the relief requested. See
Whitmore,
495 U.S. at 155; Animal
Legal Defense Fund, Inc. v. Espy,
29 F.3d 720, 723 (D.C.Cir.1994). Further, Maynor must suffer loss
of a legally protected interest that is concrete, particularized and
actual or imminent. See
Idrogo
v. United States Army,
18 F.Supp.2d 25, 27 (D.D.C.1998). The loss may not be
conjectural or hypothetical. See
id.
Maynor asserts he brings his claims as a ?duly
elected representative of the Skaroreh Katenuaka Nation, FN1
which consists of numerous individuals who are also federally recognized
and who [sic] are also plaintiffs in their own right
in this case.?
Resp. at 2. Indeed, Maynor does not seek individual relief,
rather he seeks tribal relief in the form of the
return of all Tuscarora remains, artifacts and land, cessation of
archaeological digs on Tuscarora sites, restoration of rights to the
Tuscarora people and money for the Tuscarora infrastructure.

FN1.
Skaroreh Katenuaka Nation is apparently another name for the Tuscarora
Nation. See
Compl. at p. 6.

*2
Maynor asserts that he and certain unidentified plaintiffs have standing
to sue based on the rights conferred by: (1) their
status as descendants of the 22 individuals designated as Indians
of one-half or more degree in 1938; and (2) the
decision in Maynor
v. Morton,
510 F.2d 1254 (D.C.Cir.1975). Maynor's argument lacks merit. When the
Office of Indian Affairs recognized 22 individuals as Indians of
one-half or more degree, those specific individuals became eligible for
benefits under the Indian Reorganization Act of 1934 (?IRA?),
25 U.S.C. § 461
et
seq. See
Compl. Ex. 1. The recognition, however, explicitly provided ?this
enrollment does not entitle you to membership in any Indian
tribe, nor does it establish any tribal rights in your
name ....
[f]urthermore, this enrollment would not apply to any children you
may have, unless they were born of a mother who
had likewise been determined to be one-half or more Indian.?
Id.
The Maynor
decision did not affect entitlement to benefits under the IRA
or determine appropriate benefits under the IRA. Rather, Maynor
merely declared that the Lumbee Act of 1956 did not
intervene to preclude the 22 recognized individuals from receiving benefits
under the IRA as previously determined. FN2See
Maynor,
510 F.2d at 1259. Maynor
did not confer any additional benefits on the 22 individuals
or grant benefits to other persons. It merely affirmed the
22 individuals' status as Indians entitled to benefits conferred by
the IRA.

FN2.
The Lumbee Act provides that ?the
Indians now residing in Robeson and adjoining counties of North
Carolina ...
be known as ?Lumbee
Indians.?...
[the Lumbee Indians are] not eligible for any services performed
by the United States for Indians because of their status
as Indians, and none of the statutes of the United
States which affect Indians because of their status as Indians
shall be applicable to the Lumbee Indians.?
Pub.L. No. 84-570, 70 Stat. 254.

For
standing purposes, Maynor must suffer the loss of a legally
protected interest that is actual or imminent, not conjectural or
hypothetical. See
Idrogo
v. United States Army,
18 F.Supp.2d 25, 27 (D.D.C.1998). He may not assert legal
rights or interests of third parties. See
Valley
Forge Christian College v. Ams. United for Separation of Church
and State,
454 U.S. 464, 474, 102 S.Ct. 752, 70 L.Ed.2d 700
(1982) (a party ?must
assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests
of third parties?),
quoting
Warth
v. Seldin,
422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975). Here, Maynor seeks tribal relief based on benefits bestowed
upon ancestors. He has not alleged that he or the
other unspecified plaintiffs are themselves recognized Indians who personally suffered
any losses. Neither their status as ancestors of the 22
recognized Indians nor the Maynor
decision give Maynor or the other plaintiffs any rights or
relief. Indeed, the evidence Maynor submits specifically demonstrates the rights
bestowed on ancestors were
not
automatically conferred on future generations. Accordingly, Maynor has not established
that he, or the other plaintiffs, have any rights as
Indians or have suffered any losses.

Moreover,
Maynor and the other unidentified plaintiffs lack standing to sue
as a tribe. ?An
American Indian tribe does not exist as a legal entity
unless the federal government decides that it exists.?
Kahawaiolaa
v. Norton,
386 F.3d 1271, 1273 (9th Cir.2004). ?Absent
federal recognition, tribes do not enjoy the same status, rights,
and privileges accorded federally recognized tribes.?
See
id.; see also
25 C.F.R. § 83.2.
?[W]hether
a group constitutes a ?tribe?
is a matter that is ordinarily committed to the discretion
of Congress and the Executive Branch, and courts will defer
to their judgment.?
Cherokee
Nation of Okla. v. Babbitt,
117 F.3d 1489, 1496 (D.C.Cir.1997). The Department of the Interior
has promulgated regulations establishing procedures for federal recognition of American
Indian groups as Indian tribes. FN3See
James
v. United States Dep't of Health & Human Servs.,
824 F.2d 1132, 1137 (D.C.Cir.1987) ; 25 C.F.R. § 83.2
(1986). Federally recognized tribal status is required for a tribe
to bring land or cultural claims. See
25 U.S.C. §§ 3001
, 3004 , 3005 ; U.S.
v. 43 .47 Acres of Land More or Less,
855 F.Supp. 549, 551 (D.Conn.1994) (absent certification by the Bureau
of Indian Affairs, plaintiff could not maintain action to protect
tribal land rights); Epps
v. Andrus,
611 F.2d 915, 918 (1st Cir.1979) (groups of Indians that
possess no tribal status have no standing to sue for
tribal land). Maynor does not allege that the Tuscarora Nation
is a federally recognized tribe. Nor does the Tuscarora Nation
of North Carolina appear on the Federal Register's list of
tribes entitled to receive services from the Department of the
Interior. See
67 Fed.Reg. 46328, 46331 (July 12, 2002); see
also
25 C.F.R. § 83.5(a)
; 25 U.S.C. § 479(a).
Maynor's burden of establishing standing has not been satisfied. See
FW/PBS,
Inc. v. Dallas,
493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603
(1990).

FN3.
The regulations permit any Indian group that is not currently
acknowledged by the Department of the Interior to apply for
federal recognition, thereby qualifying for federal protection, services and benefits.
See
James
v. United States Dep't of Health & Human Servs. .,
824 F.2d 1132, 1137 (D.C.Cir.1987) ; 25 C.F.R. § 83.2
(1986). A petition for federal recognition is required as a
prerequisite to acknowledgment. Id.;
25 C.F.R. §§ 83.5
, 83.7. Upon acknowledgment, Indian tribes receive certain rights and
protections, including limited sovereign immunity, powers of self-government, the right
to control the lands held in trust for them by
the federal government, and the right to apply for a
number of federal services. See
Kahawaiolaa
v. Norton,
386 F.3d 1271, 1273 (9th Cir.2004).

II.
Sovereign Immunity

*3
Even if standing exists, the complaint must be dismissed because
neither the United States nor the State of North Carolina
have waived sovereign immunity.

A.
United States

?The
basic rule of federal sovereign immunity is that the United
States cannot be sued at all without the consent of
Congress.?
Block
v. North Dakota,
461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840
(1983); see
also Tri-State
Hosp. Supply Corp. v. United States,
341 F.3d 571, 575 (D.C.Cir.2003). The federal government is ?immune
from suit save as it consents to be sued,?
United
States v. Sherwood,
312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058
(1941), and ?waiver
of the Federal Government's sovereign immunity must be unequivocally expressed
in statutory text,?
Lane
v. Pena,
518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486
(1996). Maynor, the party suing the United States, bears the
burden of identifying a congressional act that gives consent. See
Tri-State,
341 F.3d at 575. The complaint does not allege a
statute evincing a waiver of the United States' sovereign immunity.
In his response to the motion to dismiss, Maynor cites
two statutes that allegedly waive sovereign immunity, neither of which
applies to his claims.

First,
the Administrative Procedure Act (?APA?)
provides a waiver of sovereign immunity for judicial review of
?[a]gency
action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court.?
5 U.S.C. § 704.
Maynor does not allege any
agency action, let alone final agency action, has been taken
regarding his claims. See
United
Tribe of Shawnee Indians v. U.S.,
253 F.3d 543, 549 (10th Cir.2001). Section 702 of the
APA provides a general waiver of immunity to causes of
action seeking equitable relief, however even § 702
only applies to legal wrongs allegedly committed by government agencies.
Id.
While Maynor generally asserts complaints regarding the Bureau of Indian
Affairs' treatment of his father's rights under the Indian Reorganization
Act, he does not specifically assert any agency action that
pertains to his claims. Indeed, the complaint only refers to
the United States generally: ?[u]ltimately,
the Federal Government is responsible for everything that has happened
to date.?
Compl. at p. 4. Because Maynor fails to identify any
agency action, the APA's waiver of sovereign immunity is inapplicable.

Second,
the Federal Tort Claims Act (?FTCA?),
28 U.S.C. § 1346(b),
is also inapplicable. The FTCA grants federal district courts jurisdiction
over specific claims for which the United States has waived
sovereign immunity. See
Richards
v. United States,
369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492
(1962). Specifically, the FTCA confers jurisdiction over claims:

[A]gainst
the United States ...
for money damages ...
for injury or loss of property, or personal injury or
death, caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the
scope of his office or employment under circumstances where the
United States, if a private person, would be liable to
the claimant in accordance with the law of the place
where the act or omission occurred.

Maynor does not allege that an
employee of the United States government, acting in the scope of employment,
committed a negligent or wrongful act or omission that resulted in loss
of property, personal injury or death. While Maynor generally raises claims
involving land and Tuscarora artifacts, there are no allegations linking
employees of the United States government to those losses, and no allegations
that the losses were due to negligence or failure to act. In his response,
Maynor contends the United States has been negligent in carrying out fiduciary
and administrative responsibilities that were established in Maynor
v. Morton, Resp.
at 7. As previously discussed,
Maynor does not have standing to enforce Maynor
or the rights Maynor
declared remained intact to the 22 individuals under the IRA. Further,
negligent performance of, or failure to perform, duties embodied in federal
statutes and regulations only give rise to a claim under the FTCA if there
are analogous duties under local tort law. See
Art Metal-U.S.A.,
Inc. v. United States,
753 F.2d 1151, 1157 (D.C.Cir.1985). The FTCA does not support recovery
merely on the state law doctrine of negligence per
se without a showing
that similar conduct by private parties would be actionable under state
law. See e.g., Johnson
v. Sawyer, 47 F.3d
716, 728-29 (5th Cir.1995) (en banc).

Finally,
even if Maynor had a viable FTCA claim, it is
likely barred by the two-year statute of limitations. See
28 U.S.C. § 2401(b)
; Mittleman
v. United States,
104 F.3d 410, 413 (D.C.Cir.1997). Maynor's complaint contains allegations regarding
colonial and state government actions, and his father's actions in
1938 and in the 1970's. He has not established his
claims arose within the two year statutory period. The FTCA
waiver of sovereign immunity does not apply. FN4
The burden of establishing waiver of sovereign immunity by the
United States has not been satisfied.

FN4.
In a different section of his response brief, Maynor mentions
the Indian Allotment Act, 28 U.S.C. § 1353.
While that Act contains a narrow sovereign immunity waiver, it
narrowly applies to ?allotments,?
a term of art meaning ?a
selection of specific land awarded to an individual allottee from
a common holding.?
Affiliated
Ute Citizens of Utah v. U.S.,
406 U.S. 128, 142, 92 S.Ct. 1456, 31 L.Ed.2d 741
(1972) ; Reynolds
v. United States,
174 F. 212 (8th Cir.1909). Maynor does not raise claims
involving government allotments bestowed pursuant to the Indian Allotment Act
and the waiver does not apply.

B.
North Carolina

States
are immune from suit absent waiver of immunity. See
Barbour
v. Wash. Metro. Area Transit Auth.,
374 F.3d 1161, 1163 (D.C.Cir.2004) ; Evans
v. Housing Auth. of City of Raleigh,
359 N.C. 50, 602 S.E.2d 668, 670 (N.C.2004). State sovereign
immunity is constitutionally protected and a federal court is not
competent to render judgment against a nonconsenting state. See
Employees
of the Dep't. of Public Health and Welfare v. Dep't.
of Public Health and Welfare,
411 U.S. 279, 284, 93 S.Ct. 1614, 36 L.Ed.2d 251
(1973) ; Genentech
v. Eli Lilly & Co.,
998 F.2d 931, 939 (Fed.Cir.1993). A state that does not
consent to suit is immune from suits brought in federal
courts by her own citizens. See
Bd.
of Trustees v. Garrett,
521 U.S. 356, 362 (2001) ; Barbour,
374 F.3d at 1163. The conclusion that a state has
waived its immunity will not be lightly inferred, and courts
indulge every reasonable presumption against the waiver of a state's
Eleventh Amendment rights. See
Coll.
Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 682, 119 S.Ct. 2219, 144 L.Ed.2d 605
(1999) ; Barbour,
374 F.3d at 1163. Generally, the court will find a
waiver if the state voluntarily invokes the court's jurisdiction, or
if the state makes a ?clear
declaration?
that it intends to submit to the court's jurisdiction. See
id.
States enjoy sovereign immunity from suits brought by Indian tribes.
See
e.g., Idaho
v. Coeur d'Alene Tribe of Idaho,
521 U.S. 261, 268-69, 117 S.Ct. 2028, 138 L.Ed.2d 438
(1997).

*5
Maynor contends the State of North Carolina waived its sovereign
immunity by filing motions to dismiss and for a more
definite statement. In support, Maynor primarily relies on Clark
v. Barnard,
108 U.S. 436, 448, 2 S.Ct. 878, 27 L.Ed. 780
(1883) and Smith
v. State,
289 N.C. 303, 222 S.E.2d 412 (N.C.1976). Maynor's reliance on
Clark
is misplaced. In Clark,
the State of Rhode Island filed a counterclaim and prosecuted
its claim to the particular fund in controversy. Id.
Accordingly, the court determined sovereign immunity was waived because the
state voluntarily appeared to fully pursue its rights. The Clark
court specifically distinguished Rhode Island's appearance from that in Georgia
v. Jesup,
106 U.S. 462 (1882), where the state did not
waive immunity by appearing solely to protest jurisdiction and to
establish sovereign immunity. Id.
Here, the State of North Carolina does not voluntarily assert
claims or submit claims for judicial determination. Rather, it appears
solely to contest jurisdiction and to establish immunity.

Moreover,
Maynor mistakenly contends Smith
establishes North Carolina's waiver of sovereign immunity regarding land transactions.
In Smith,
a medical doctor sued the State of North Carolina for
wrongful discharge. Because the doctor's cause of action was based
on an employment contract fully authorized by the legislature, the
court determined the state implicitly consented to suit for breach
of contract and the doctrine of sovereign immunity was unavailable.
Id.
at 423-24. This narrow holding applies only to valid contracts
entered into by the State of North Carolina. Maynor's cause
of action is non-contractual. The burden of establishing waiver of
sovereign immunity by the State of North Carolina has not
been satisfied.

CONCLUSION

For
the foregoing reasons, defendants' motions to dismiss are granted. The
State of North Carolina's motion for more definite statement is
moot.